![]() a party to a lawsuit, you need to know about the discovery of electronically stored information (ESI), also known as e-discovery. Why? Because the requirements to preserve and produce ESI are quickly evolving and have often taken over lawsuits as if e-discovery has a life of its own. This article will address the basics of e-discovery so that your business can start taking steps to minimize its impact. arbitration proceedings when parties are required to exchange information. Before computers and other electronic devices were regularly used in business, company to look through its paper files for relevant documents, including letters, internal memoranda, and the like, which would then be copied and provided to the other party or made available for copying. As businesses started using computers to create and store company information and email to communicate, a new treasure trove of relevant documents emerged, namely, the documents that were stored on the company's computer. Before the widespread use of text messages, communications were limited to emails, and email communication was also limited as many companies preferred faxes and snail mail instead. Thus, in its infancy, it was easy to produce ESI because the volume of ESI was minimal. As hard drives increased in storage capacity and more companies relied on a shared computer network rather than stand-alone computers, companies realized the benefit of storing information electronically as it would allow them to reduce the amount of paper. Unfortunately, the pervasive use of electronic devices has created an explosion of ESI. ESI has now grown from merely reviewing and producing emails to scouring all of a company's electronic devices for evidence, in the form of documents, emails, text messages and instant messages. These are not merely stored on a company's individual computers or server, but also on other electronic storage devices, including external hard drives, tablets, laptops and cell phones. The bigger the company, the more bytes of information that need to be scoured. E-discovery thus now encompasses the discovery of information stored on all of these electronic devices. of ESI Procedure and Federal Rules of Civil Procedure (AFRCP) permit e-discovery in pending litigation. The rules for e-discovery in California can be found at Code of Civil Procedure 2019.040 [applying the discovery rules to ESI], 2031.010(e) [party may demand production of ESI], 2031.210 [objecting to discovery of ESI], 2031.280 and 2031.285 [production of ESI]. In federal actions, the rules can be found at FRCP Rules 34 [permitting production of ESI] and 37 [failure to cooperate with discovery]. In fact, virtually all states have similar laws that permit the discovery of ESI. Have to be Produced with issues surrounding the discovery of ESI when first notified that a lawsuit may be filed. At that time, company representatives and counsel should get together to determine if there is ESI that relates to the claim. If there is any possibility that there is, the company should institute a "litigation hold." This is the process by which the company identifies any sources of ESI that may be discoverable (i.e., may be relevant or lead to the discovery of admissible evidence), and then take affirmative steps to preserve the ESI. This may be difficult. Once a litigation hold is in place, it is important to take steps to make sure that the litigation hold remains in place. Why? Because if ESI is destroyed once you know a claim may be made for which ESI may have to be produced, the court may make in complex business, construction, banking, consumer finance and real estate litigation and ADR (alternative dispute resolution). 499 West Shaw Avenue, Suite 116 Fresno, California 93704 559.248.4830 Fax ch-law.com |